Calcutta High Court
Exhibitors Syndicate Pvt. Ltd. vs Repose Properties Pvt. Ltd. And Ors. on 7 September, 2006
Equivalent citations: AIR2006CAL323, 2007(1)CHN433, AIR 2006 CALCUTTA 323, 2007 AIHC NOC 124, (2007) 1 CAL HN 433, (2007) 1 RENTLR 112, (2007) 1 ICC 383
JUDGMENT Arun Kumar Mitra, J.
1. Challenge has been thrown against Order No. 7 dated 17-6-2005 passed by the learned IXth Bench of City Civil Court at Calcutta in Title Suit No. 703 of 2005. Context of the case in which this appeal arose is as follows:
Cultural Enterprises Corporation being the defendant No. 2 in Title Suit No. 703 of 2005 entered into a deed of lease on 28th June. 1957 with Charusila Dassi & Anr, the owners of the Premises No. 138/1, Bidhan Sarani along with a cinema hall being Sree Cinema. Two properties being 138/1 and 138/2 with two cinema halls Sree and Uttara were given on lease but in the instant suit we are concerned only with 138/1 Bidhan Sarani i.e. Sree Cinema.
2. The lease was executed on July 18th, 1957 and it was for a period of 40 years i.e. the lease was valid till July 17th, 1997. A sub-lease was executed by defendant No. 2 in favour of the appellant herein in respect of the same premises and accordingly, the sub-lease was also to expire on 17th July, 1997.
3. On behalf of the owners, a letter was issued by the advocate notifying that lease and sub-lease will expire by efflux of time on 17th July, 1997 and through this letter, possession was demanded.
4. Dispute started between the management of Sree Cinema and its staff and accordingly cinema hall was closed and work was suspended. Lease rent was Rs. 9000/-per month.
5. Secretary of the local Hawkers Union convened a meeting in front of the Cinema Hall and declared that they will forcibly break open the padlocks of the Cinema Hall by snatching the key from durwan and will occupy the vacant lobby of the Cinema Hall and use the same for hawking by next day.
6. One Title Suit No. 1626 of 2001 was filed by the appellant against Dipankar Sengupta in which an order of ad-interim status quo as regards the possession of the two Cinema Halls was granted.
7. Appellant initiated criminal proceedings against Sujit Singh and Ors. Under Section 144(2) of the Code of Criminal Procedure in which the learned Magistrate directed the Officer-in-Charge, Shyampukur P.S. to enquire the matter and to see that no breach of peace takes place at the locality.
8. The plaintiff M/s. Repose Properties (P) Ltd. entered into an agreement dated January 14th, 2005 with the proforma defendant Nos. 4 to 9 for purchase of the suit premises against consideration of Rs. 1,65,00,000/- (Rupees one crore and sixty five lacs only) The said agreement was registered with the Registrar of Assurance and stamp duty of Rs. 17 lacs was deposited. Under the terms of the said agreement the plaintiff paid a sum of Rs. 18 lacs to the defendant Nos. 4 to 9 as earnest money and/or part of the consideration. Under the terms of the said agreement the plaintiff Repose Properties was entitled to undertake possession of any part of the suit premises and/or evict any tenant and/or sub-tenant from occupation of the suit premises. It is once again to say that the suit premises, as per the schedule of the plaint is 138/1 Bidhan Sarani over which Sree Cinema is there and we are concerned only with Sree Cinema.
9. It is once again made clear that Cultural Enterprises Corporation being the defendant No. 2 in the suit, took lease of the premises or the suit property from Charusila Dassi and Debi Prasanna Ghose, the predecessor-in-interest of the proforma defendant Nos. 4 to 9.
10. It is alleged that union of the workers' Sree-Uttara House Committee went into possession of the Cinema Hall and ultimately, Rs. 60,000/- was paid and the said Committee delivered possession to the plaintiff.
11. The plaintiff, accordingly sent a letter dated April 21st, 2005 to the said Committee being the proforma defendant No. 10 and in the said letter the plaintiff said that they are agreeable to pay Rs. 60,000/- and they are also agreeable to make the workers of the Cinema Hall permanent and as indicated above possession was delivered by the proforma defendant No. 10 on 21-4-2005. The said Committee also issued a certificate certifying that it had delivered possession to the plaintiff.
12. According to the plaintiff, Repose Properties Pvt. Ltd., on 25th April, 2005 informed the Officer-in-Charge, Shyampukur Police station that at about 4-00 p.m. eight to ten unknown persons came to Sree Cinema claiming that they have been sent by the defendant No. 1, Dilip Kankaria and tried to forcibly trespass into the building.
13. Again, on April 26th, 2005, the plaintiff informed the Officer-in-Charge. Shyampukur Police Station that on the same date a group of unknown persons came to Sree Cinema and forcibly trespassed into the said premises and tried to force the Security Guards out of the premises claiming that Dilip Kankaria being the defendant No. 1 was entitled to possession of the premises and threatened that they would return to the premises on 1-5-2005 with a larger group and forcibly take possession of the premises. Accordingly the suit being Title Suit No. 703 of 2005 was filed with the following prayers:
(a) A decree of declaration that the defendant Nos. 1. 2 and 3 are not entitled to possession of the suit premises as admittedly the right of possession of the said defendants has admittedly come to an end.
(b) A decree of declaration that the defendant Nos. 1, 2 and 3 are not entitled to take possession of the suit premises, when admittedly they had no right to possession of the suit premises.
(c) A decree of permanent injunction restraining the defendant Nos. 1, 2 and 3 from taking possession of the suit premises interfering with the plaintiff and proforma defendant Nos. 4 to 9's peaceful use and enjoyment of the suit premises.
14. The plaintiff filed the suit and also an application under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. In the said application the plaintiff made the following prayer:
In the circumstances the petitioner humbly prays that Your Honour may be graciously pleased to pass an order of temporary injunction restraining the defendant Nos. 1, 2 and 3 from taking possession of the suit premises or interfering with the plaintiff and proforma defendant Nos. 4 to 9's peaceful use and enjoyment of the suit premises till the disposal of the suit and to an interim order in terms thereof till the disposal of this application and/or pass such further or other order or orders as Your Honour may deem fit and proper.
15. On the said application the learned Judge IXth Bench, City Civil Court at Calcutta passed Order No. 3 dated 3-5-2005. This order was passed ex parte. By virtue of this order the learned Trial Judge directed inter alia all the parties to maintain status quo in respect of possession of the suit premises till disposal of the temporary injunction.
16. The defendant No. 3, Exhibitors Syndicate Pvt. Ltd. filed affidavit in opposition to application filed by the plaintiff.
17. The plaintiff also filed affidavit in reply to the opposition of the defendant No. 3.
18. The defendant No. 3 also filed an independent application under Order 39, Rules 1 and 2 read with Section 151 of C. P. C. with the following prayers:
(a) Temporary injunction be issued restraining the plaintiff, its men and agents from changing the original uses, nature and character of the heritage building at premises No. 138/1, Bidhan Sarani i.e. 'Sree' Cinema (formerly 'Cornwallis' Cinema)
(b) Temporary injunction be issued restraining the plaintiff from making any construction, addition, alteration or changes and/or from opening any market/stores/shop or any other ancillary business therefrom.
(c) Ad-interim order in terms of prayer (a) & (b);
(d) Cost of the application;
(e) Such other order or orders as the Learned Court may deem fit and proper.
19. The defendant No. 3, Exhibitors Syndicate also filed an application under Order 39, Rule 4 of Code of Civil Procedure for vacating the interim order of status quo passed ex parte on 3-5-2005. The aforesaid two applications filed on behalf of the defendant No. 3 were taken up for hearing and the learned Trial Court passed the impugned order.
20. In brief, apart from other things, the crux of the letter in this suit and injunction petition is as follows:
21. Admittedly, sub-lease was granted to Exhibitors Syndicate Pvt. Ltd. by Cultural Enterprises Corporation, who took lease of the suit property from the owners for 40 years. The lease expired in the year 1997. There was a dispute in between the management the staff of the Cinema Hall. There was a Union viz. Sree and Uttara Cinemas House Committee. The said union declared that they are in possession of the cinema hall and against Rs. 60,000/- they handed over possession to the Plaintiff, Repose Properties Pvt. Ltd. It was also alleged that the House Committee gave a certificate to the extent that they have delivered possession to the plaintiff Repose Properties Pvt. Ltd. and the plaintiff also gave in writing that they have received possession. In such circumstances, the Court on 3-5-2005 passed ex parte order directing the parties to maintain status quo regarding possession of the suit premises till disposal of the temporary injunction petition filed on behalf of the plaintiff.
22. By the order impugned the learned lower Court had rejected two applications filed on behalf of defendant No. 3.
23. Being dissatisfied, the defendant No. 3 Exhibitors Syndicate Pvt. Ltd. filed the instant appeal.
24. Mr. Roychowdhury appearing for the appellant submitted that it is a settled law starting from Sir Ashutosh's judgment till date that even if a trespasser - he cannot be evicted without due process of law.
25. Admittedly, lease was granted in favour of M/s. Cultural Enterprises Corporation, defendant No. 2 and therefrom the Exhibitors Syndicate Pvt. Ltd. got the property by way of sub-lease. Admittedly, lease ended in 1997. Mr. Roychowdhury submitted that it is admitted that lease period is over but what is the remedy or what is process for recovery - it cannot be forceful and it must be under due process of law.
26. Mr. Roychowdhury also submitted that the learned Trial Judge, when hearing the injunction application or when passing the impugned order, did not consider the basic application under Order 39, Rule 1 and 2 filed by the plaintiff. The learned Trial Judge only considered the application under Order 30, Rule 4 filed by the defendant No. 3/appellant herein and the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by the defendant/appellant.
27. Mr. Roychowdhury relied on the judgment of Sir Ashutosh reported in Vol. XIX CLJ 47 : AIR 1914 Cal 362 Israil and Ors v. Samser Rahman and Ors. Mr. Roychowdhury submitted that in this judgment the Hon'ble Judges observed that "In an application for a temporary injunction the Court has to determine whether there is a fair and substantial question as to what the rights of the parties are and where does the balance of convenience lie." Mr. Roychowdhury laid stress on the observations in the judgment which is as follows:
Under circumstances like these, the matter for consideration at this stage is, where does the balance of convenience lie; is it desirable that the status quo should be maintained or is it right that the defendants should be allowed to continue to alter the character of the land? It is well settled that the Court will not refuse an injunction in a case of this description so as to give the defendants an undue advantage over the plaintiffs.
28. It is relevantly stated that before making any submission or opening the case, Mr. Roychowdhury gave a suggestion or proposal in open Court to the respondent through their learned Advocate. Mr. Roychowdury submitted or gave a proposal in the manner as follows:
Let there be the order of status quo remain. Both the parties will not be entitled to change the nature and character of the suit property and this Court should give direction to hear out the main suit within a particular period" but the respondents learned Counsel did not agree to such a proposal of Mr. Roychowdhury.
29. Mr. Roychowdhury submitted that even if after the expiry of the lease period his client remained in possession and his client cannot be dispossessed without due process under law. In this regard Mr. Roychowdhury relied on a decision : Samir Sobhan Sanyal v. Tracks Trade Private Ltd. and Anrs. Mr. Roychowdhury submitted that in this judgment the Hon'ble Apex Court clearly observed that "person in possession of the property cannot be dispossessed without due process of law."
30. Mr. Roychowdhury submitted further that the Court should not allow somebody to make the property irreversible and he submitted that in the instant case if the respondents are allowed to continue with the construction work then ultimately, when the suit will be over the property will be irreversible. Mr. Roychowdhury referred to the decision Gangubai Bablya Chaudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and Ors. etc. Mr. Roychowdhury laid stress on paragraph 6 of this decision which is quoted hereinbelow:
6. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F. S. L. for the whole of the land including the land involved in dispute the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 sq. meters of land on which they can put up construction.
31. Mr. Roychowdhury on this score submitted that for that simple reason he wanted that the Court should not allow to make any construction or to change the nature and character of the suit property lest it becomes irreversible.
32. Mr. Roychowdhury now attacked the ex parte interim order to maintain status quo passed by learned Trial Judge. He submitted that before passing an order of status quo the Court should decide as to what is status. Mr. Roychowdhury in this regard relied on a judgment (Ishore Kumar Khaitan. v. Praveen Kumar Singh. Mr. Roychowdhury laid stress on the observations made in paragraphs 5, 6, and 7 of this judgment. The said paragraphs are quoted hereinbelow:
5. It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified grant of such injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when once Court had found no reason to grant an ex parte order of injunction and the appellate Court was dealing with only the limited question whether an ad interim order of injunction should or should not been granted by the trial Court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial Court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the Court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction.
6. An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Keeping this principle in mind it is necessary to see whether in the case on hand, the Additional District Judge was justified in passing the interim order of injunction.
7. Admittedly, the defendants are the owners of the building. The plaintiff was setting up a case that the plaint schedule part of the building had been granted to him on lease on 17-4-1998 and that he had obtained possession thereof on the basis of such a lease transaction. The lease, thus set up by the plaintiff has been denied by the defendants who had pleaded that the plaintiff had been entrusted with some renovation work for which he was being paid and the alleged document relied on by him was a concocted one. The grant of mandatory injunction would necessarily depend upon the plaintiff establishing before the Court that on 19-6-1998 when the Court directed the parties to maintain status quo, he was in possession as a tenant of the plaint schedule properly. The burden in that behalf is clearly on the plaintiff, the claim he made, having been denied by the defendants. Therefore, the first question that the District Court had to consider pursuant to the order of remand by the High Court was whether the plaintiff had prima facie established that the building was let out to him as claimed. The building is seen to be a substantial dimension, within the District of Howrah, part of city, commercially important. Prima facie it is difficult to imagine that such a building or the second floor and part of the ground floor of a building of this nature would have been let out in such an informal manner and the transaction not being evidenced even by a rent deed executed by the lessor and the lessee in terms of Section 107 of the Transfer of Property Act. What the plaintiff has relied upon is seen to be a letter on the letterhead of Khaitan Paper Machine Limited signed by the first defendant describing himself as Managing Director and partner of Khaitan Estates. Prima facie it is seen that whereas the letterhead is that of Khaitan Paper Machine Limited, obviously a limited company, the signature is that of the Managing Director and partner of Khaitan Estates, an entity different from Khaitan Paper Machine Limited. It is difficult to imagine that the letterhead of one company was used for dealing with the properties of another entity which appears to be a partnership as the description contained in the letter. Secondly, the letter purports to be an acknowledgment for having received a sum of Rs. 2 lakhs as security from the plaintiff and creating a tenancy in favour of the plaintiff, and inducting the plaintiff into possession in respect of the entire floor and shop rooms in the ground floor as a tenant on a monthly rent of Rs. 7000 and conferring upon the plaintiff a right to do certain other acts in the premises. It is also stated that a stamped agreement would be created by the signatory as well as his wife, in favour of the plaintiff. Prima facie, the document does not satisfy the requirements of Section 107 of the Transfer of Property Act and though it acknowledges receipt of a sum of Rs. 2 lakhs, there is no stamp affixed to indicate that it was intended to be a receipt for the said sum. As noticed, the rent stipulated is also Rs. 7000 per month. Suffice it to notice, that the genuineness of this document which is seriously disputed by the defendants, its admissibility in evidence and validity, have to be decided in the suit. Therefore, one of the questions that has to be decided is whether this letter is genuine and if it is genuine, whether it is capable of bringing into existence a lease or accepted as evidencing a lease transaction between the parties. Since this is the document on which the suit is based, the finding on the genuineness and validity of this document and the alleged transaction created by it will have a great bearing on the claim of possession by the plaintiff. No doubt the signature of defendant 1 found in the document is admitted but with an explanation that it is a got-up document. A suit has also been filed by the defendants challenging it.
33. Mr. Roychowdhury then referred to a Division Bench judgment of this Court Smt. Usha Ghosh v. Rabidra Nath Das where the Hon'ble Division Bench of this Court observed "even if the Court cannot go beyond the statutory provision when giving possession in execution in excess of decree coupled with police aid supplied by Executive Magistrate renders the process void."
34. Mr. Roychowdhury further argued that as submitted by him earlier also, all along this is the settled position of law that nobody can be evicted without due process of law but in this case admittedly, it has been alleged that the employees or staff of the cinema, through their Union delivered possession to the respondent when admittedly, through lease/sub-lease the possession of the appellant there, was valid and legal till 1997 and after the expiry of the same what is the remedy for recovery of possession? That must be statutory and not by application of force. In this case Mr. Roychowdhury's client not only filed an application under Order 39, Rule 4 but also an independent application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for vacating the ex parte interim order of status quo and also for restraining the plaintiff, its men and agents from changing the nature and character of the suit premises and also from making any construction, addition, alteration and/or from opening any market/store/shop etc. therefrom.
35. Mr. Roychowdhury lastly reiterated his stand and submitted that the learned Judge did not at all consider the application under Order 39, Rules 1 and 2 filed by the plaintiff. He submitted that this Court should dispose of all the three applications without sending it on remand.
36. Mr. Kar appearing for respondent No. 6 submitted that the lease was for 40 years and the lease expired in 1997 and after the expiry of the lease, the client of Mr. Roychowdhury has no authority to remain in possession. Mr. Kar strenuously argued and tried to establish as to what is the position of a tenant or a lessee after the expiry of the tenancy or the lease. Mr. Kar referred to and relied on a decision Kewal Chand Mimani v. S. K. Sen Mr. Kar submitted that the position of a tenant after the expiry of tenancy becomes a tenant at sufferance. Mr. Kar referred to the observations made in paragraph 35 of this judgment which is quoted hereinbelow:
35. Coming back to the second of the twin issues as noticed above, namely, can be Mimani's be termed to be a tenant holding over -- incidentally, the act of holding over in any event after the expiration of the term does not necessarily create tenancy of any kind; if the lessee remains in possession after the determination of the term then for all practical purposes, he becomes a tenant at sufferance. This Court in R.V. Bhupal Prasad v. State of A.P. had the occasion to deal with this concept of tenancy at sufferance. In para 8 of the report, this Court observed (SCC p. 704) (at p. 143 of AIR):
8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at p. 633, the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy' at sufferance does not create the relationship of landlord and tenant. At p. 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression 'holding over' is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.
37. Mr. Kar submitted that the lessee, after the expiry of the lease, has no right to remain in possession. In support of his contention Mr. Kar referred to another decision R.V. Bhupal Prasad v. State of Andhra Pradesh. He laid stress on the observations made in paragraphs 8, 13 and 16 of this decision which are quoted hereinbelow for convenience of discussion.
8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English Law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.
13. In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry.
16. The High Court, therefore, was right in its conclusion that the possession of the appellant is unlawful. The learned single Judge of the High Court (K. Ramaswamy, J. as he then was) in M. Kameswara Somayajulu v. State of A.P. (1987) 1 APLJ 82 (SN), was not correct in his holding that at the time of renewal the licensee need not establish his lawful possession due to omission in Rule 12(B)(1) which was followed by another Division Bench. The Full Bench has reconsidered the controversy. For different reasons given by us, we think that the conclusion reached by the Full Bench is correct.
38. Mr. Kar submitted that after the efflux of time a tenant or a lessee, if in possession, is in wrongful possession. Mr. Kar submitted that here Sree -- Uttara Cinemas House Committee delivered possession to the landlord and there is no illegality in it and Mr. Roychowdhury's client, who is in wrongful possession being the lease is over, cannot pray for possession. Mr. Kar posed a question what right the client of Mr. Roychowdhury has got in and over the suit property particularly when the lease has expired in 1997?
39. Mr. Kar also submitted that the learned Trial Judge rightly passed an order of status quo and there is no apprehension of change in the nature and character of the suit property -- naturally, that prayer of Mr. Roychowdhury should be rejected.
40. Mr. Paul Chowdhury, appearing for respondent Nos. 4, 5, 7 and 8 adopted the submissions made by Mr. Kar and submitted that Sree -- Uttara Cinemas House Committee was in possession of 138/1, Bidhan Sarani i.e. Sree Cinema and delivered possession to the landlord against Rs. 60,000/-on an agreement and at this stage Mr. Roychowdhury's client neither can claim recovery of possession nor can pray for any other interim order.
41. Mr. Das Adhikary, appearing for the respondent No. 1 mainly opposed the prayer of Mr. Roychowdhury insofar as change in nature and character of the suit property. Mr. Das Adhikary submitted that if there is any further construction -- for that provision is there in the Calcutta Municipal Corporation Act. Section 400(1) and Section 400(8) for the purpose of demolition of structure. Section 401 as there for stoppage of work and in view of so many provisions there cannot be any apprehension that there will be further construction or change in the nature and character of the suit property.
42. Mr. Das Adhikary submitted that already an order of status quo has been granted which is sufficient to protect the suit property and no further interim order is necessary, neither the status quo order should be vacated.
43. In this appeal following are the admitted facts:
(1) Exhibitors Syndicate derived legal right through lease/sub-lease from the owners. The lease, however, expired in 1997 but Exhibitors Syndicate remained in possession.
(2) Repose Properties claimed that they have secured possession from Sree -- Uttara Cinemas House Committee against Rs. 60,00.0/-.
(3) Sree -- Uttara Cinema House Committee claimed that they took forcible possession from Exhibitors Syndicate Pvt. Ltd.
(4) The learned Trial Judge did not consider the application under Order 39, Rules 1 and 2 filed by the plaintiff/Repose Properties Pvt. Ltd., as it appears from the impugned judgment and order.
(5) The learned Trial Judge however, did not give proper reasoning for this when passing the impugned order.
44. In the above admitted position we are to consider the age old settled theory in granting injunction i.e. prima facie case, balance of convenience and irreparable loss and injury. On the touchstone of these three principles let us test as to whether the learned trial Judge was right or wrong in coming to his conclusion or decision.
45. When passing the Order No. 7 dated 17-6-2005 the learned trial Judge at the very outset observed "The record is taken up for order on the application under Order 39, Rule 4 of C.P.C. filed by the defendant No. 3 on 17-5-2003 and also the application under Order 39, Rules 1 and 2, C.P.C. filed by the defendant No. 3 on 10-6-2005 are taken up for order."
46. From the above observation it appears clearly that the plaintiffs application under Order 39, Rules 1 and 2, on which ex parte interim order was passed, was not taken into consideration by the learned trial Judge.
47. The learned trial Judge when rejecting the application under Order 39, Rule 4 filed by the defendant, appellant herein, did not consider the other application filed by the same defendant under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure inasmuch as the learned trial Judge failed to appreciate, when passing the order of status quo that status is to be decided first i.e. when passing status quo as regards the possession, it is to be decided as to who is in possession, otherwise the purport or implications of the order of status quo fails as observed by the Hon'ble Apex Court in its judgment Kishore Kumar Khaitan v. Praveen Kumar Singh (supra).
48. The learned trial Judge also did not consider or rather relied on the claim of the plaintiff that Sree -- Uttara Cinemas House Committee has given the owners possession but how the Sree -- Uttara Cinemas House Committee got the possession. Again, that settled position of law comes that nobody can be ousted (even on the expiry of lease) without due process of law. This principle settled by Sri Ashutosh has not yet been changed by any judgment of the Hon'ble Apex Court and when that becomes the position, the learned trial Judge should have considered who has ousted Exhibitors Syndicate Pvt. Ltd. from possession or how they were ousted. What is the due process of law? Is that they were ousted by any Court of law or by any order of Court? The answer comes in the negative. We are tempted to accept the submission of Mr. Roychowdhury in this regard that the position of law of taking possession has not changed and in this regard we are unable to agree with the submission of Mr. Kar or his allies Mr. Paul Chowdhury and Mr. Das Adhikary.
49. So long as the above position of law of taking possession is not unsettled till then no one is permissible to take forcible possession.
50. The learned trial Judge also did not consider wherefrom Sree Uttara Cinemas House Committee derived the right to secure the possession.
51. Insofar as Kewal Chand Mimani (supra) cited by Mr. Kar is concerned, other way round it goes to support the contention of Mr. Roychowdhury. The learned trial Judge found that Cinema hall is closed due to suspension of work but that does not ipso facto give the employees or the staff of the Cinemas House Committee the right to derive possession forcefully.
52. Till day of passing the impugned order by the learned trial Judge no evidence came out showing that Mr. Roychowdhury's client has been dispossessed through Court of law or through due process of law.
53. On the above matrix without criticizing or scanning furthermore the impugned order of learned trial Judge let us see what order should have been passed or can be passed in the present context.
54. Considering the point of prima facie case we must say that we have already said that Mr. Roychowdhury's client could not be dispossessed by any lawful order of any Court. Insofar as the balance of convenience is concerned, we think that the property -in--suit should not be or cannot be made irreversible so that at the end of the suit it can be said that one party has expended a lot against the property.
55. Insofar as Mr. Das Adhikary's submission is concerned, it appears to us that there must be genuine apprehension of change in the nature and character of the suit property because the learned Counsels for the respondents are seriously opposing such prayer of Mr. Roychowdhury. On the one hand Mr. Das Adhikary is submitting that there is no such apprehension of any further construction or change in the nature and character of the suit property and on the other he is referring to different provisions of Calcutta Municipal Corporation Act, 1980 regarding stoppage of construction and/or demolition of unauthorized construction. From this submission itself it appears that there is chance of construction and/or change in the nature and character of suit property.
56. At the present moment insofar as irreparable loss is concerned, if ultimately it is found that Mr. Roychowdhury's client is liable to be dislodged then there will be no objection or no loss on behalf of the plaintiff but if the property is kept irreversible - as observed by the Hon'ble Apex Court and ultimately if it is found that Mr. Roychowdhury's client has some right then he will suffer irreparable loss and injury.
57. Considering all the aspects we are of the view that all the three applications -- one under Order 39, Rules 1 and 2 filed by the plaintiff, the other under Order 39, Rules 1 and 2 read with Section 151, C.P.C. filed by the defendant and the third, the application under Order 39, Rule 4 of C.P.C. filed by the defendant/appellant herein can be disposed of and are disposed of by maintaining order of status quo with further order that neither of the parties will be entitled to change the nature and character of the suit property till the disposal of the suit.
58. Insofar as the submission of Mr. Das Adhikary and Mr. Roychowdhury concerning the nature of the building, whether thika or heritage or insofar as the power of the Heritage committee or composition of the said committee -- we do not propose to discuss that aspect in this context since those are irrelevant for the purpose of disposing of the present appeal.
59. We are not interested to remand all three applications to the learned trial Judge for hearing afresh in view of the fact that the said remand will only expend the time. At the same time, considering the importance of the suit, we direct the learned trial Judge to dispose of the T.S. No. 703 of 2005 within a period of six months from date without granting any unnecessary adjournment to anybody.
60. Along with this appeal the application for stay being CAN 6135 of 2005 is also disposed of.
61. With the above direction and/or observation the appeal is disposed of and disposal of this appeal also means disposal of the application for temporary injunction filed on behalf of the plaintiff before the learned Trial Court with direction made above.
62. There will be, however, no order as to costs of this appeal.
63. Urgent xerox certified copy, if applied for, be supplied to the parties expeditiously after complying with all legal formalities.
Kishore Kumar Prasad, J.
64. I agree.